The representative plaintiff is Lorne Waldman, a leading immigration and refugee lawyer, whose work for Maher Arar has allegedly been copied by Thomson Reuters through its “Litigator” service. Litigator is a fee and subscription-based database for lawyer-created court documents that permits users to copy and edit documents for their own purposes.

According to Mr. Waldman, this case raises important issues about copyright law in the digital age.

“I have always been open to sharing my work in order to advance the law and assist members of the legal profession and the public, however I strongly believe that I and other authors of these documents have the right to ensure that our work is used appropriately, and with our knowledge and consent. This case will determine whether large corporations like Thomson Reuters can profit from the work of others, obtained and copied without permission.”

John Gregory’s listserv has had a vigorous discussion on how far the fair use defence will stretch.

Seems to me that it is, or should be, explicit in the fact of filing a pleading in court that one makes it available to the public to use in any manner it wishes, short of passing off.

I’ll simply add that I, doing it myself, or engaging somebody else, could go to the court and, by paying the per page amount, get a copy of the pleading from the court. If that’s valid, why isn’t Litigator? It’s merely a how much issue. (Yes, I have in mind the joke about the price of sex and what that makes one.)

Call that fair use, if one wishes.

My initial inclination was to say more, but, unfortunately, I have some concern that the same viewpoint that drives the lawsuit might drive various steps against people who cast aspersion on the lawsuit in a public forum.

We have been here before. Back in 2006 we surveyed Slaw readers about access to factums and included responses to survey questions on copyright.

On copyright, there was no clearly dominant position although respondents were attracted by the idea that factums were documents created for a specific public purpose, and should be made publicly accessible. Again the existing protections under the Copyright Act should protect against use that falls outside the fair dealing defence. Those taking the survey noted that the chief use of the factums would be for legal research purposes. Others noted that factums were drafted not as creative works for all time, but as advocacy documents that had the sole purpose of advancing the client’s argument and winning appeals.

According to Prof. Farrow of Osgoode, the supposed reason why courts only award partial and substantive indemnity costs, as opposed to full costs, is that litigants are also engaging the judicial system as a form of public service. As much as it might be derided by some elements of the public, litigation builds on our body of case law, which develops a richer basis for future courts to draw upon.

It would seem to me on first impression that if litigation itself is in part a public service, and filed documents are part of the public record as David points out, there should be no private copyright attached to them at all.

But I would love to see some judicial comment on the subject. I’ll be watching this one closely.

It seems to me that there is a significant difference between having the documents accessible to researchers and making them available for sale as precedents. Of course they should be accessible as part of the public court file, forever, and neither the lawyer nor the client can prevent that because of their investment in creating them.

That does not mean that anyone can come along and sell them as precedents – much less put its own copyright notice on it. That reminds me of one of the Canadian legal publishers who used to – may still – publish a volume called Ontario Provincial Offences (or such like title) which contained a selection of Ontario statutes that create offences. The only text in the whole volume not enacted by the Legislature was the publisher’s copyright notice!

As between lawyer and client, should a retainer agreement deal with copyright in the documents that the lawyer creates for that client under that agreement? When was the last time any lawyer, barrister or solicitor, created an entire legal document from scratch, rather than from his/her/the firm’s precedent base or a commercial text, or other lawyers’ documents in his/her/the firm’s files?

Again, as I said, anyone can walk into any court, or have somebody go into the court for them, and get a copy of any pleading (that isn’t subject to a sealing order) by paying the per page cost. Litigator is the electronic equivalent of the person getting the document. My view is that there’s no practical difference in substance between what the courts are offering and what Thomson is offering, beyond the fact that (1) Thomson isn’t a public institution and (2) If Thomson is making more money from it, let’s assume that it’s more than the courts are.

I’m now going to be very careful. I’ll start with this general observation. It’s disappointing (to me) how often I find support for my jaundiced view of the profession of which I’m a part.

Now for some comments which are more specific.

1. I will consider believing that the action is about principle and not principal when I hear that both Mr. Waldman and his lawyers disclaim, in material filed with the court, any interest in keeping any of the money that they may succeed in forcing Thomson to disgorge beyond, for Mr. Waldman, any actual financial damage he can prove he has sustained (on even a substantial possiblity possibility-but-less than probability basis, assuming he can prove causation on the balance) and for class counsels fees whatever their time is actually worth. That, by the way, should be determined by the court. No contingency. No multiplier. The number of necessary hours put in by class counsel could be relevant.

2. I’d like to know whether Mr. Waldman believes that all of the allegations in the claim are, in fact, true. I don’t mean just that there are technical breaches of copyright law. I want to know that he believes there is harm caused by Thomson that Thomson should pay for. I’ll pick just two:

(a) the first sentence of para 43 “The Arar Factum was never made available to the public in a format that could be edited, copied or revised.”

I’d like to know if Mr. Waldman has that belief about all documents he files with the court. Also, how he asserts the public would know that. I’d hope not to hear “ignorance of the law etc …”

(b) para. 54 “The defendants have infringed the plaintiffs moral rights in the Arar Factum by undermining the work’s integrity. The Arar Factum has been used in association with the Litigator service to the prejudice of the honour and reputation of the plaintiff, contrary to sections 14.1(1), 28.1, and 28.2(1)(b) of the Copyright Act.”

There’s absolutely nothing in the claim that provides any detail as to the alleged prejudice (which I understand to be harm) to the “honour and reputation” of Mr. Waldman. I consider that gap telling given that the pleading also claims punitive damages and the failure to mention any attempts at negotiations/dealings with Thomson regarding the alleged harm to Mr. Waldman.

I also find it telling that there’s nothing in the pleading alleging that Mr. Waldman asked Thomson to withdraw the Arar factum from the service immediately he learned about it.

3. I want to know if Mr. Waldman claims the action would have been filed if the disgorgement of profits claim was not available.

4. Assuming the action is about principle rather than principal principle, I want to know why the punitive damages claim was included.

5. Even if there’s a technical basis to the action’s allegations of breach of copyright, I consider that services such as Litigator provide an essential service to many lawyers. Used properly, they should (and likely already do) make the quality of legal work better by providing precedents to people who might not otherwise have ready access to these documents. The real question, then, is whether Thomson should be paying somebody something for the data it’s assembling in the Litigator database. Thomson maybe profiting from it but so is the profession. That issue should not be resolved in a class action lawsuit.

6. That leads to my next point. This question isn’t rhetorical. Let’s assume that the entity running the Litigator service was entirely not-for profit. Do Mr. Waldman say he would not have agreed to be the name plaintiff? Do his lawyers say they wold not have taken the action?

7. The class described in the action is not limited to people who now are or once were Canadian lawyers. It is:

all persons who are the authors of original legal documents, and all persons, law firms, or other legal entities, who own copyright in the Works, as defined below. The legal documents in question include, without limiting the generality of the foregoing, pleadings, affidavits, facta, and notices of motion that the defendants have copied,used or otherwise dealt with in connection with their Litigator service.

Most people in the profession who fall into that class will be in a position to express their views on being included. They should.

Mine should be clear enough. I think it a fair guess that I qualify as a member of the class. I want no part of the action. Waldman may not include any document any document which in any way qualifies as my “Work” as it is defined in the claim in the action. (It seems to me that if enough “authors” who are members of the class take that position, it’s going to create significant problems for certification.)

I intend to write to Mr. Waldman’s counsel and make it clear that I am not to be included in the class and that no material of mine which is or could be a “work” as defined in the pleading, or part of a “work” or used to create a “work” etc. is to be included in the action. I will post a copy of that letter, here.

It strikes me that if the large Canadian law firms all wrote letters to that effect to Mr. Waldman’s counsel, it would gut the class.

8. In substance, I don’t see any difference between preparing a pleading (including a factum) filed in court that some layer then copies, or writing an article for a legal journal that tells some lawyer exactly how his or her argument should be made, even if it doesn’t contain the exact words. (I expect Mr. Waldman and his lawyers will say that by having the article published in a law journal, I’ve expressly consented to it being used in that fashion. I agree that’s probably TECHNICALLY right. I also agree that 6 is the same as 1/2 dozen.)

9. That leads to my penultimate point, for now. How much of a “you’re not speaking on my behalf” response will it take for Mr. Waldman and class counsel to pull the plug.

10. And my final point (for now). Does Mr. Waldman have an indemnity agreement in place with class counsel so that, if the action is dismssed, somebody else will pay the costs?

I would think it would be somewhat ironic, given the copyright notice that Thomson has placed on the materials, if the very lawyer who had originally authored a pleading finds him or herself on the receiving end of a copyright infringement claim from Thomson.

While I understand the perspective of others posted in this forum, I have a bit of trouble seeing how filing pleadings with the court is tantamount to giving up all rights. Would that not be akin to asserting that, because music is broadcast to the public over the radio, that one should be able to collect, compile and resell those transmissions?

Admittedly I have not given it much thought (and perhaps I’ll post something more intelligent when I do), but intuitively it strikes me that the claim has some degree of merit to it.

Forgot to add – didn’t Milberg Weiss try to do same thing a few years ago? Not a class action but threatening other lawyers with copyright infringement where they believed their work product was being recycled?

Presumably Thomson is taking the position that filing a factum places it in the public domain. If so, they would be unable to copyright the material, I should think. (Though they might have a claim in some other respect against a competitor who took their digitization without compensation, proof problems aside.)

The primary concern here is that we get to see justice being (and having been) done. An economist would have to tell me whether the “public domain upon filing” approach or another structure — assignment of copyright to the court, for instance — would best ensure the promulgation of these law bits in a market economy such as ours. But technology, surely, will become increasingly relevant here: as I understand it the SCC now requires that facta be filed in electronic form; it shouldn’t be long before all pleadings at all courts will be filed electronically; the relevance here is the ease with which these documents can be made available for individual use or, indeed, for collection and redistribution. There will be no need for minions from Thomson to go to the court for the paper copies to be OCRd, though there’ll still be a utility in the collection and indexing of the data. The courts, however, might appropriately choose to assume these tasks. Or they might, equally appropriately, pass them on to CanLII.

Interestingly, CanLII doesn’t currently collect and make available SCC factums and neither does LexUM, which otherwise publishes judgments for the Court. I gather that the Court takes the position that if you wish to take factums from the SCC site for republication — even non-commercial republication — you must get permission from the author.

I must admit I have some difficulty seeing the legal basis upon which one could assert that a document that would otherwise be subject to copyright enters into the public domain once filed with a court and therefore made available to the general public, either perhaps on the basis of an implied license or otherwise (though with the caveat that I’ve certainly not researched the topic lately).

To perhaps take a similar analogy, authors of books are not considered to have placed those books in the public domain when they are placed in a library. Admittedly not a perfect analogy since the authors have not themselves placed the book there and libraries also have special dispensation under the Copyright Act, but I do think it serves to illustrate the point.

Along similar lines, CCH v. LSUC might possibly be helpful (in an ironic sort of way), though it seems fairly clear in this case that Thomson would not be able to rely on the fair dealing exception under s. 29 of the Copyright Act. I also don’t see how any of the other exceptions could apply. In contrast, it seems quite evident to me that a lawyer obtaining a copy of a pleading from a court for use even in the preparation of another pleading could satisfy the requirements to fall within the fair dealing exception.

I should also mention that my previous comment about Thomson suing lawyers was somewhat tongue in cheek. I doubt they would attempt to assert copyright ownership over the original pleading itself and do recognize that they may have an independent claim of copyright in the database that they’ve compiled (and any other related summaries, keywords, indexing, etc. that they’ve added) to the extent that the criteria in CCH v. LSUC is met.

As for the application of technology, again, to be honest, I don’t see how that itself would necessarily alter the application of the law. It would of course change the facts: If the courts were to make pleadings available electronically, then I think the analysis to be undertaken would be very similar to that of CCH v. LSUC and that there be a relatively good basis for arguing that courts fall within the definition of a “library” under the Copyright Act and therefore take advantage of the exceptions applicable to same.

The Lawyers Weekly has an article on this story in the June 18 issue, which includes interviews with counsel,

Sokolov acknowledges “anybody can go to the court file and get a copy of a document and use it as a basis for their research or work. That’s fair.”

But he argues “the difference of course is if you go to a court file and make a copy, the court isn’t making a profit off a lawyer’s work. The court is providing it as a public service. But it’s a material difference to take tens of thousands of documents and offer them for sale, on a bulk basis, without any compensation, or indeed any permission, from the people who wrote them.

“The nature of the copying, the nature of the publication, and the nature of the profit-making from it, puts it in a different category altogether, and we think that that’s what makes this matter actionable.”

Goldblatt adds “on top of that there is also the fact that the documents are transformed into a format where they can be downloaded, and directly copied from [via cut and paste, for example]. So it goes above and beyond research, to where it can be used as the very basis for another draft of the document.”

The Lawyers Weekly article that Omar refers to also quotes from a Slaw comment about the Waldman lawsuit, attributing the words to “one lawyer commenting on the Slaw legal weblog” rather than a specific person. The article states:

“Sokolov and Goldbatt say lawyers who have contacted them about the case from all over North America have been ‘overwhelmingly positive.'”

“However, public reation has been mixed so far, with one lawyer commenting on the Slaw legal weblog that the Litigator service likely improves the quality of legal work ‘by providing precedents to people who might not otherwise have ready access to these documents. The real question, then, is whether Thomson should be paying somebody something for the data it’s assembling in the Litigator database. Thomson maybe profiting from it but so is the profession. That issue should not be resolved in a class action lawsuit.'”

The quotation is lifted from point 5 of my comment (#7) above. I suppose I should be content that the quotation is accurate and that they didn’t spell my name incorrectly.

Five more points about the The Lawyers Weekly piece and the Waldman lawsuit.

1. It’s a prime example of what I call “infomercial” legal writing, with a touch of “groupie-ism” thrown in. There’s a front page picture of Messers. Sokolov and Goldblatt. Per Anybody care to speculate on the relevance of that picture to any aspect of the merits of the lawsuit.

No? That’s what I thought.

2. It displays The Lawyers Weekly too cavalier, in my view, regard for the accuracy of what it publishes. Consider the paragraph

“Sokolov and Goldbatt say lawyers who have contacted them about the case from all over North America have been ‘overwhelmingly positive.’”

I assume that S & G said that, but what does “overwhelmingly positive” mean in this context. Is it numerical? If so, did the LW article writer ask how many “lawyers” had contacted them and from what jurisdictions? Was it 3 out of 4 lawyers from Nunavut? 9 out of 10 from Mississippi? 4 out of 6 from their law firm? Out of all of the thousands of lawyers there are in North America how many have “contacted them”. Or is “overwhelmingly positive” a comment on the views of the few lawyers who contacted S or G; that is, that the lawyers views were “overwhelmingly” positive, whatever “overwhelmingly” means?

3. I think it won’t be too unkind of me to point out that, as civil litigators, “overwhelming” for Messers S & G, in numerical terms, need be no more than an infinitely small amount more than 50%.

4. Given that the LW writer quoted from a Slaw comment, we’re entitled to assume she read the Slaw lead article and all of the comments. The comments refer to a similar complaint in the United States. Does anybody find it surprising that the LW article doesn’t mention that situation, yet it states that the issue “was raised – but not decided – in the action against Google’s books database plan? Regardless of one’s views about the levels of avarice in parts of the profession, it’s instructive to compare the first step the California lawyers took to the actions of Mr. Waldman and his lawyers. Comments #1 and #3 contain links to the California lawyers’ letter to the Chief Justice of the California Supreme Court.

5. If I get bored enough at some point during the summer – if this were winter I’d have a Leaf game to create the opportunity – I’ll see if there’s anything instructive in the 613 mitzvot. Wikipedia has been good enough to reproduce the Maimonides’ list. One never knows. We are, after all, the people of the book, and the law suit is about the use of, in a way, books. Off hand, #308 could be relevant if we substitute “toner” for “oil”; maybe 467, 468, 474, 476, 481; on the other hand, there’s 497 and 500, let alone 501 and 563.